Uttarakhand High Court
Swami Darshan Bharti Alias Devendra vs Union Of India And Others on 6 December, 2018
Author: R.C. Khulbe
Bench: Ramesh Ranganathan, R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No. 227 of 2018
Swami Darshan Bharti alias Devendra
Singh Pawar and another ...Petitioners
Vs.
Union of India and others ...Respondents
Mr. A.S. Rawat, learned Senior Counsel assisted by Mr. P.C. Pethshali and Ms.
Charanjeet Kaur, learned counsel for the petitioners.
Mr. S.N. Babulkar, learned Advocate General with Mr. Paresh Tripathi, learned
Chief Standing Counsel for the State of Uttarakhand/respondent nos. 3 to 5.
Mr. Sanjay Bhatt, learned Standing Counsel for the Union of India/respondent
no.1.
Dated: 06th December, 2018
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble R.C. Khulbe, J.
Ramesh Ranganathan, C.J. (Oral) The anguished cry of the petitioners, as vehemently put across by Sri A.S. Rawat, learned Senior Counsel, is that certain scenes in the film "Kedarnath" hurt Hindu religious sentiments, more particularly of those who are devotees of Lord Shiv at Kedarnath. Certain newspapers reports, and a pen drive depicting the trailer of the said film, are enclosed along with the writ petition seeking a direction for certain objectionable scenes in the said film to be deleted.
2. We asked Sri A.S. Rawat, learned Senior Counsel, whether we could don the robes of the Censor Board, and cut certain parts of the movie, which according to the petitioners is objectionable, in the exercise of our powers of judicial review under Article 226 of the Constitution of India, and whether there is any "law" in force which can be said to have been violated, by the producers of the film.
23. The only law, to which our attention has been drawn by Sri A.S. Rawat, learned Senior Counsel is the Cinematograph Act, 1952. Learned Senior Counsel would submit that Section 13 of the Cinematograph Act, 1952 casts an obligation on the Government to take action in situations, such as the present, where the film, which hurts religious sentiments of several citizens of this country, may well result in a grave law and order crisis.
4. Section 13 of the Cinematograph Act, 1952 relates to the power of the Central Government or local authority to suspend exhibition of films in certain cases. Section 13(1) of the Cinematograph Act, 1952 stipulates that the District Magistrate, in respect of the district within his jurisdiction, may, if he is of the opinion that any film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend exhibition of the film and, during such suspension, the film shall be deemed to be an uncertified film in the district. Under Section 13(2), where an order under Section 13(1) has been issued by the District Magistrate, a copy thereof, together with the statement of reasons therefor, shall forthwith be forwarded by the person making the same to the Central Government, and the Central Government may either confirm or discharge the order. Under Section 13(3), an order made under Section 13 shall remain in force for a period of two months from the said date, but the Central Government may, if it is of the opinion that the order should continue in force, direct that the period of suspension shall be extended by such further period as it thinks fit.
5. The power under Section 13(1) of the Cinematograph Act is conferred on the District Magistrate, that too in respect of the district within his/her jurisdiction. Such a power is not unfettered, and is subject to the conditions stipulated in the sub-section itself, which is the formation of opinion by the District Magistrate that the film, which is being publicly exhibited, is likely to cause a breach of peace.
36. "Formation of opinion", as held by the Supreme Court in Barium Chemicals Ltd. and another Vs. Company Law Board and others (AIR 1967 SC 295), is a subjective process lending itself to a limited scrutiny by the court that such "opinion" was not formed on relevant facts or within the limits or within the restraints of the statute as an alternative safeguard to the rules of natural justice. Once an order is passed by the authority, the said order can be challenged if it is beyond the limits prescribed by the statute or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any of these situations, it can be said that the authority did not honestly form its opinion or that, in forming it, it did not apply its mind to the relevant facts.
7. The District Magistrate must exercise his powers, under Section 13(1) of the Cinematograph Act, 1952, also bearing in mind the fundamental right of freedom of speech and expression, conferred on all citizens of this country, under Article 19(1)(a) of the Constitution of India, and the reasonable restrictions imposed under Article 19(2). A movie is an "expression" of its maker and would fall within the ambit of Article 19(1)(a) of the Constitution of India. While Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and expression, Article 19(2) of the Constitution of India stipulates that nothing in Article 19(1)(a) shall affect the operation of an existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred in the said sub-clause in the interest of: (i) the sovereignity and integrity of India; (ii) the security of the State; (iii) friendly relations with foreign States; (iv) public order; (v) decency or morality, or; (vi) in relation to contempt of court, defamation or incitement to an offence.
48. It is only with respect to the aforesaid matters, specified in Article 19(2) of the Constitution of India, is the State empowered to impose reasonable restrictions, that too by way of a law. An executive order is not "law" within the meaning of Articles 19(2) to (6) of the Constitution of India. In Kharak Singh v. State of U.P.:
1963 CriLJ 329 the Supreme Court examined the question whether a police regulation which was a mere departmental instruction, having no statutory basis, could be said to be a law for the purpose of Article 19(2) to (6). The Constitution Bench answered the question in the negative and said:-
"..........Though learned Counsel for the respondent started by attempting such a justification by invoking Section 12 of the Indian Police Act he gave this up and conceded that the regulations contained in Chap. XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be "a law" which the State is entitled to make under the relevant Clauses (2) to (6) of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Article 19(1), nor would the same be "a procedure established by law" within Article 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations......." (emphasis supplied)
9. In Bishambhar Dayal Chandra Mohan and Ors. vs. State of Uttar Pradesh and Ors. (AIR 1982 SC 33) the Supreme Court observed:-
".........The quintessence of our Constitution is the rule of law. The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In State of Madhya Pradesh v. Thakur Bharat Singh [1967] 2 SCR 454, the Court repelled the contention that by virtue of Article 162, the State or its officers may, in the exercise of executive authority, without any legislation in support thereof, infringe the rights of citizens merely because the legislature of the State has power to legislate in regard to the subject on which the executive order is issued. It was observed:5
"Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority."
The same principle was reiterated by the Court in Satwant Singh Sawhney v. Dr. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi and Ors.: [1967] 3 SCR 525 , and Smt. Indira Nehru Gandhi v. Shri Raj Narain: [1976] 2 SCR 347.........."
10. Any law made under Clauses (2) to (6) of Article 19, to regulate the exercise of the right to the freedoms guaranteed by Article 19(1)(a) to (e) and (g), must be 'a law' having statutory force, be it a statutory law or a statutory rule/regulation, and not a mere executive or departmental instruction. [Bijoe Emmanuel and Ors. vs. State of Kerala and Ors. (1986) 3 SCC 615; Krishnan Kakkanth Vs. Government of Kerala and others (AIR 1997 SC 128)]. A citizen cannot be deprived of the fundamental right under Article 19(1) except in accordance with law. The requirement of law, for the purpose of Clauses (2) to (6) of Article 19 of the Constitution of India, cannot be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution of India or otherwise. Such a law must be one enacted by legislature or subordinate legislation. [State of Bihar and Ors. vs. Project Uchcha Vidya, Sikshak Sangh and Ors. (2006) 2 SCC 545].
11. In the present case, it is not even the case of the petitioners that any of the District Magistrates in the State have formed the opinion that the film "Kedarnath", which is scheduled to be publicly exhibited soon, is not likely to cause a breach of peace. The petitioner's grievance relates to the inaction on the part of the District Magistrate to do so. They seek a mandamus from this Court to the District Magistrate to apply his mind to their representation(s), and then take immediate steps to suspend exhibition of the film.
12. While it is debatable whether this Court would, in the exercise of its jurisdiction under Article 226 of the Constitution of India, issue 6 a mandamus to the District Magistrate to form his opinion in a particular manner, as the opinion under Section 13(1) of the Cinematograph Act, 1952 must be of the District Magistrate, and not that of the petitioners or the Court, the petitioners claim that they have brought these facts to the notice of the Chief Minister. The power conferred under Section 13(1) of the Cinematograph Act, 1952 is on the District Magistrate, and exercise of such power is to be confined only to the limits of his jurisdiction which is the district of which he is the District Magistrate. Any information or representation could only have been furnished or addressed to the District Magistrate and, exalted though the office of the Chief Minister is, the law (i.e. the Cinematograph Act, 1952) confers power of suspending exhibition of a film, under Section 13(1) of the Cinematograph Act, 1952, only on the District Magistrate and not on any other superior authority.
13. Sri S.N. Babulkar, learned Advocate General appearing on behalf of the State of Uttarakhand, would submit that the State Government has formed a 'high level committee' to examine the grievances of the public regarding restrictions being placed on the exhibition of the film "Kedarnath", and it is always open to the petitioners to submit their representation(s) to the said committee.
14. We see no reason to take up on ourselves the task which Parliament has conferred, under Section 13(1) of the Cinematograph Act, 1952, on the District Magistrate. While we may not be understood to have expressed any opinion either in favour or against the contentions of the petitioners, more so as they have not even chosen to array the producer of the said film as a respondent in the writ petition, we record the submission of both Sri S.N. Babulkar, learned Advocate General that the State Government is seized of the matter, and of Sri A.S. Rawat, learned Senior Counsel, that a representation has been submitted to the District Magistrate, Rudraprayag in this regard. While we see no justification for a mandamus or a direction to be issued to the authorities, more 7 particularly to the District Magistrates, we have also no reason to doubt that the authorities concerned will examine the matter in accordance with law.
15. The writ petition is, accordingly, closed.
(R.C. Khulbe, J.) (Ramesh Ranganathan, C.J.)
06.12.2018 06.12.2018
Rahul